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Songwriter groups hit out at the major labels’ position on moral rights

By | Published on Thursday 17 August 2017


A rousing chorus of songwriter groups has hit out at the Recording Industry Association Of America over its submission to an official review of the moral rights of creators in the US. The songwriter organisations – including BASCA in the UK – reckon that the major record companies Stateside are pursuing an anti-songwriter agenda on this point, while concurrently relying on vocal support from the songwriting community when it comes to lobbying for safe harbour reform.

So, yes, moral rights. Copyright law usually provides creators certain ‘moral rights’ over their work. Crucially, a creator retains these moral rights even if they assign the actual copyright in their work to a third party.

Let’s put that in the context of music. You’re a songwriter. You write a song. Which means you create a copyright. You’re the owner of that copyright. And that means you have the exclusive rights to reproduce, distribute, rent out, adapt, perform in public and communicate your song.

But then you decide to assign those controls to third parties. In the UK, you’d probably assign some controls to your collecting society, ie PRS, and the other controls to a music publisher, in return for a cash advance and administrative support. That means you are no longer the copyright owner, so you no longer enjoy the copyright controls.

However, your moral rights remain. The specifics of those moral rights vary greatly from country to country, though the global copyright treaty known as the Berne Convention provides two such rights.

In the words of said Convention: “Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation”.

Some copyright systems go big on moral rights, some less so. Moral rights in UK copyright law are pretty minimal and, some would argue, pretty useless. Not least because a songwriter can waive their moral rights by contract. Even though we are supposedly talking about morality here, and you’d think that people shouldn’t be allowed to opt out of that. But, even so, the two moral rights set out in the Berne Convention are there in the UK Copyright Act, sitting neatly in sections 77 and 80.

But what about the US? Although America finally signed up to the Berne Convention in 1988 – a mere 102 years after the treaty had been written – moral rights have never really been properly implemented Stateside. Which is why, earlier this year, the US Copyright Office announced that it would “review how existing US law protects the moral rights of attribution and integrity and whether any additional protection is advisable in this area”.

The songwriters argue that additional protection is very much advisable in this area, to properly bring American copyright law in line with other copyright systems on moral rights. The writers are particularly keen to properly enshrine the right to attribution into American copyright law. But, for the labels, who could be made responsible for ensuring that attribution – at least in some circumstances – that sounds like awfully hard work.

Hence the songwriters and the RIAA being at odds on this issue. In an open letter to the record industry trade group, the writers state: “The RIAA’s argument prioritises the inconvenience of dealing with accurate metadata over the principle of the protection of the rights of the people upon whose work the music business is built”.

“In our view”, the letter goes on, “and the view of many in the creator community, this is not only irresponsible [but] it represents a betrayal of the ‘greater common purpose’ to which so many of us are committed – a purpose with which the RIAA claims to agree”.

The letter cites the submission made by composer Maria Schneider to the Copyright Office review, which – among other things – hits out at the way YouTube deals with songwriter data, that – many writers reckon – is contrary to their moral rights.

For the songwriters, therefore, this issue sits alongside the higher profile safe harbour debate, ie it’s about trying to reform copyright law to address perceived issues in the digital music domain. The RIAA, of course, is leading the charge on safe harbour. It is therefore ironic, the songwriters reckon, that it is at odds with the rest of the music community on moral rights and songwriter attribution.

Schnieder’s submission, the songwriters argue, “outlined how enforceable rights of attribution can be useful, if not indispensable, tools in achieving the kind of accountability from the internet that, in other submissions, the RIAA seeks to establish”. The RIAA’s comments in the moral rights review, therefore, “are taken by many in the music creator community as a betrayal of our joint commitment to expand opportunities for creators”.

Although framed as a debate around moral rights, in many ways this discussion is the much more familiar one about music rights data in the digital market – and the lack of songwriter information on and within the digital music platforms. That lack of data, of course, means consumers don’t know who wrote the songs they love and can’t navigate streaming catalogues based on songwriter, and also that getting writers paid when their work is streamed is a tediously complex process.

Some would argue that these problems are the result of the music publishing sector’s widely documented failure to create a publicly accessible global database of song ownership information. Though others would argue that the record companies and digital platforms that exploit song rights have a duty to ensure this information is in the streaming ecosystem as well, and the songwriter’s moral right to attribution is one way to justify that viewpoint.

That said, even in countries with pretty decent moral right regimes, the bad song data problem hasn’t been solved. A fact you could use to counter concerns amongst American labels and digital companies that beefing up moral right provisions in US copyright law will result in costly new obligations for record companies and streaming platforms.

Which is to say, labels and digital firms haven’t seen the need to bother to implement decent songwriter data on the streaming platforms in countries where moral rights are already clearly enshrined in law, so what difference would some clarity on moral rights Stateside make?

Except, of course, America has a particularly litigious culture, hence – perhaps – the labels’ concern that reform in this domain will inevitably result in litigation and, depending how that legal action went, new obligations for record companies.

For their part, the songwriters reckon that the RIAA is over-stating the work that would result from a firm right to attribution being inserted into American copyright law.

They reckon that “music platforms will come up with innovative and effective ways to give credit” if forced to do so. But, in speaking out against the need for decent songwriter attribution, the letter adds, the RIAA is providing ammunition for tech firms that have a vested interest in not knowing who wrote any one song, probably for safe harbour reasons.

The letter concludes by encouraging the RIAA to publicly amend its position on moral rights and to back Schneider’s aforementioned submission to the Copyright Office on this issue. Not least because, by working against the songwriting community in this domain, the labels risk allowing the tech companies to employ a divide and conquer strategy, which could impact the success of the music industry’s safe harbour campaign.

Fun times. The organisations signing the open letter include: British Academy Of Songwriters, Composers And Authors; European Composer & Songwriter Alliance; MusicAnswers; Music Creators Of North America; Council Of Music Creators; Screen Composers Guild Of Canada; Societe Professionnelle Des Autuers Et Des Composituers Fu Quebec; Society Of Composers And Lyricists; Songwriters Association Of Canada; Songwriters Guild Of America; and Songwriters Of North America.